Pa. high court allows voting-machine suit to proceed

HARRISBURG - The fate of electronic voting machines used in most Pennsylvania counties will be decided by a state court.

A decision by the state Supreme Court this week denying an appeal filed by the secretary of the commonwealth clears the way for Commonwealth Court to determine whether touch-screen machines violate the state election code.

"It allows, finally, the courts to review whether the secretary of the commonwealth complied with his obligation to ensure that the Pennsylvania system of voting is reliable and safe," said Michael Churchill, an attorney for the 25 voters who sued the agency claiming the machines are flawed.

The case is the latest development in a debate being played out in courtrooms and legislatures across the country over the reliability of electronic voting machines, adopted by many states over the last six years.

Twenty states have scrapped electronic voting machines, including California and Florida. The New Jersey General Assembly passed legislation ordering elections officials to attach paper printers to 10,000 electronic voting machines.

Following a sweeping review of her state's voting systems earlier this year, Ohio's secretary of state, Jennifer Brunner, ordered all boards of elections using electronic touch-screen voting machines to have backup ballots.

"The study found that all voting systems, particularly the electronic machines, had critical security failures, and she recommended the legislature move to optical scan, but that proposal was not accepted," said Jeff Ortega, Brunner's spokesman. "In the wake of the study, three counties changed over to paper, including the most populous, Cuyahoga, and that was widely hailed as a success."

In Pennsylvania, a group of voters filed suit in August 2006 asking Commonwealth Court to decertify direct recording electronic voting machines used in 50 of 67 counties, including Philadelphia, Delaware, Bucks and Montgomery. In a majority decision in April 2007, a court panel threw out the secretary of the commonwealth's arguments and agreed that flaws in the electronic machines might constitute a violation of the state election code.

Chester County is the only Southeastern Pennsylvania county still using paper ballots, the result of a battle waged by the Chester County Coalition for Voter Integrity.

"There is a national shift, not because of litigation, but because of a realization among computer-science and elected officials that the technology is not up to the task," said Marian Schneider, a Berwyn lawyer who works with Voter Action, a national group that supports litigation efforts on election integrity. "The reason there are national implications in this case is that there are very few cases where the evidence of the machines' unreliability has been proven in court."

The Pennsylvania suit alleges that the machines are riddled with problems, including dropping votes and registering votes for the wrong candidate, and violate the state election code requirement to have a physical record of each vote.

A spokeswoman for Pedro Cortes, the secretary of the commonwealth, said the agency was disappointed that the court did not hear the appeal.

"On the bright side," said Cortes' spokeswoman, Leslie Amoros, "the paucity of problems with voting systems over the past few elections, including the recent presidential election, shows that the plaintiffs' fears are grossly exaggerated."

States began shifting toward electronic voting machines when federal funding became available after the passage of the Help America Vote Act in 2002, a law designed to assist states in eliminating problematic punch-card voting systems like those used in Florida in 2000.

Marian Schneider, cocounsel in the Pennsylvania case along with Drinker, Biddle & Reath L.L.P. and the Public Interest Law Center of Philadelphia, said problems arose soon after the machines arrived in the commonwealth.

In the 2006 primary, Allegheny County reported "phantom votes," or more votes than there were signatures of voters, Schneider said. "The system is not secure and not reliable."